Saturday, May 13, 2006

Virtual property, virtual crime

When property law -- civil and criminal-- evolved, "property" consisted only of tangible items like the land the farm depicted in this photograph occupied, the farm buildings and their contents.

This zero-sum conceptualization of property (i.e., property as real, tangible "things," animate and inanimate) prevailed essentially unchallenged until twentieth-century technologies began to make intangible property a socially and legally significant commodity.

The notion of intangible property was not entirely new. In Europe, the principle that one could hold an ownership interest in an intangible such as the ideas recorded in a printed volume of text or the principles underlying a new mechanical or other invention originated in the fifteenth century, the product, I would argue, of a new technology: the printing press. While one could always use handwriting to record ideas and mechanical principles, printing introduced a new possibility; one could produce many, many copies of such a record, copies that could be distributed throughout the country, throughout the Continent and even beyond.

The concept of intangible property -- specifically, the law of copyright and patents -- evolved to give the "owner" of original ideas some way to control the dissemination and use of those ideas. Controlling dissemination and use had become important because the ideas themselves now had "value;" they could be sold directly (books and, eventually, other works of art/entertainment) or could be used to produce revenue (inventions such as the automobile, telephone, etc.).

The law of copyright, patent and related intellectual property doctrines is now well-established (some, including me, would say too well established with regard to statutes like the DMCA). I am not particularly interested in that law or in the activities it is designed to protect.

What I am becoming interested in, and am writing about today, is a broader notion of intangible property -- something I will call "virtual property" to distinguish it from the more traditional types of intangible property to which we, and the law, are accustomed. Unlike these traditional types of intangible property, "virtual property" has not been incorporated into the law, civil or criminal. I want to speculate about how criminal law should deal with "virtual property."

The first thing I need to do is to define "virtual property," which is not easy. I cannot simply define it as property that exists only in digital form, because this would encompass a great deal of conventional intangible property that is protected by the patents, copyrights or other intellectual property law doctrines which I find uninteresting. But while I cannot base my definition entirely upon this asepct of "virtual property, I can incoporate it into my definition of "virtual property."

The first component of my definition, therefore, is that "virtual property" exists only in digital form. It differs from conventional intangible property, I think, in that its value derives entirely, or almost entirely, from activities that are conducted in the virtual world of cyberspace. As I noted above, the value of conventional intangible property lies in activities conducted in the real-world: We buy a book (printed or on tape) to read (listen to) it in the real-world; the same is true of music; and the same is true of the myriad of inventions (cars, refrigerators, TV's, hair-dryers, elevators, etc.) that have altered the way we conduct our lives in the real-world.

(I know stories and music can crossover from the real-world to the virtual world of cyberspace, but I am using rather broad strokes in this analysis . . . product of its being my first cut at the topic plus space limitations that do not let me use footnotes for lengthy asides.)

The ultimate example of "virtual property" as I define it is property that exists and is utilized in an online environment, such as a massively multiplayer online game or a virtual world like Second Life. Unlike stories (books, movies) or music, this type of intangible property is not transportable; it has value only within the online context. If this "virtual property" could be transported to the real, physical world, it would be meaningless; it would have no use and therefore no value.

So, we now have the notion of a specialized type of intangible property; property that only exists and has value in the context of online activities. From a legal perspective, this notion gives rise to two issues: (1) Do we recognize ownership and other traditional property rights in this "virtual property"? and (2) If so, how do we deal with those who infringe upon these property rights?

The first issue has been analyzed by scholars who specialize in civil property law, about which I know very little (what I vaguely recall from my first year Property class, plus buying a house). I will leave that issue to them. Basically, though, I believe -- and many agree -- there is no reason why we cannot recognize property rights in what I am defining as "virtual property" just as we recognize rights in tangible, real-world property and in conventional intangible property.

I think this recognition is already well on its way; a couple of weeks ago, Business Week had a story on entrepreneurs who earn money (good money) by selling goods that exist and are useful only within the confines of Second Life. These and other "virtual property" entrepreneurs operate on the assumption that they "own" the goods they sell, just as real-world entrepreneurs own what they purvey. And the legal validity of that assumption has been upheld in court; a couple of years ago, for example, a Chinese court held that a gamer "owned" the "virtual property" he had amassed while playing the online game Hongyue.

So I think we can justifiably assume the law protects/will protect ownership interests in "virtual" property just as it does in tangible and conventional intangible property. This first step is not conceptually difficult because it basically requires recognizing, and enforcing, contractual rights among people who are engaging in legitimate activities and are, therefore, likely to be obey the dictates of the law. We see this in the Chinese case I noted above.

The difficulty arises, as it always does, with the outlaws . . . with the people who reject legitimate activity and contumaciously violate contractual and other rights. How do we deal with those who steal or destroy "virtual property"? Do we make this a real-world crime and assign real-world law enforcement officers to apprehend the perpetrators, who are then, presumably, sanctioned in the real-world?

This has been done. Last year, Japanese police arresteda Chinese exchange student who was suspected of participating in "onine mugging" and theft that targeted gamers playing Lineage II. As far as I can tell, the Chinese student was arrested for theft -- for using bots to "run virtual stick-ups" in the game. This seems to be very unusual, though. The Hong Kong Police seem to have a special unit that deals with "virtual property" thefts in online games, but this is clearly the exception. My sense is that most law enforcement agencies would not see this type of theft as a matter they should pursue. I think there are several reasons for this.

One is, I suspect, the unstated but prevalent assumption that, after all, "it's just a game" and an online one at that. I think this assumption undercuts the possibility that law enforcement officers (and, no doubt, legislators and others involved in the articulation and enforcement of the law) will take online theft of "virtual property" seriously in two ways:

It reflects the view that the gamer-victims assumed the risk of being victimized by playing the game; many online games, after all, routinely feature various forms of mayhem and other antisocial activity. I imagine law enforcers would tend to see this as an anticipated consequence of participating in an optional endeavor and, as such, something that is not their responsibility; they would probably not regard this as "real crime." ("Real crime" being a phenomenon unique to the real, physical world in which our participation and the risks it engenders are distinctly not optional.) It is not, in other words, serious crime in the way real-world crime.

It reflects the view that "virtual property" is not really property (i) because it does not "really" exist (i.e., exists only online, not in the real, physical world) and/or (ii) because its value, if any, is unstable and therefore insignificant. (In a tragic case last year, a Shanghai gamer reported the theft of a virtual sword he used in Legends of Mir 3 to police, who said there was nothing they could do because the sword was not real property.)

Another reason law enforcement officers (and law-makers) are not inclined to take online crimes involving "virtual property" seriously is an issue I have written about before: There are simply not enough law enforcement resources to deal with cybercrime in any of its incarnations; police therfore tend to triage -- to prioritize the application of the resources that are available to online crimes. This prioritization emphasizes (i) crimes that "harm" individuals, such as cyberstalking, luring children for sexual encounters and child pornography; and (ii) crimes that target "real" property, such as identity theft, extorting money from businesses and the misappropriation of intellectual property.Yet another reason may be that, as many have suggested, law enforcers and law-makers tend to see this as a matter that should be handled internally, by the operator of the game or those who participate in it. This does happen and can take either of two forms.

One is vigilantism: When law enforcement does not intervene, gamers have been known to take the law into their own hands. Earlier this year, for example, South Korean Lineage players were massacring Chinese players because they believed Chinese players were stealing "virtual property" from Korean players. (And, on another note, some citizens of Second Life crucified a game player who had been repreatedly killing other players.)

The other approach is initiated by the operator of the game, and reflects the emergence of customary norms online. Some games, for example, banish griefers (disruptive players) from the game.

Many who have examined the problem of online crime believe "internal" solutions such as these are the appropriate way to deal with online crimes that target "virtual property." Those who take this position tend to assume, I think, that there will always be a clear, radical distinction between "online life" and "real life." They tend to regard "online life" as more analogous to a hobby than to "real life." They therefore conclude that it would be unreasonable to extrapolate the laws and institutions we use to structure "real life" to the unreal, transient, less-than-serious life online.

I think they are wrong. I think we will see -- are in fact already seeing -- the distinction between "online life" and "real life" blur. I think this is evident in the Business Week article I mentioned earlier, the one that focuses on the entrepreneurs in Second Life. We will, for the foreseeable future, continue to live physically in the "real," empirical world, but I think more and more of our activities -- "serious" activities as well as activities some may dismiss as frivolous -- will migrate online.

The production of physical goods and the achievement of physical tasks (e.g., building houses and roads) will necessarily occur primarily in the empirical world. Other endeavors, however, can migrate substantially online; individuals, companies and agencies that provide services can operate substantially online. (Think of what this would do to alleviate the problems we currently experience with commuting to real-world working spaces and the pollution that causes). We will eventually inhabit both the offline and worlds, moving back and forth between them routinely and unconsciously. Earlier this year, a conference was held simultaneously at a site in Cambridge and in the virtual environs of Second Life. And this month the BBC held a virtual music festival that took place simultaneously in the real-world and in Second life.

I'm on the brink of digressing into another topic. What I really want to say is that the "internal" solutions I outlined above are a viable way of dealing with transgressions against "virtual property" as long as it remains a specialized, "lesser" species of property. Entrepreneurs like those described in the Business Week article noted above are already using commerce based upon "virtual property" to support themselves and their families. The trade in "virtual property" does, concedely, seem to be little more than a cottage industry at this point, but it will certainly grow. As it grows, "virtual property" will become more common, will come to play a greater role in our economies (the fused economies that derive from our simultaneously inhabiting the "real" and "virtual" worlds) and will markedly increase in value.

As "virtual property" moves into the mainstream and ceases to be a specialized, "lesser" species of property, we will no longer be able to rely on boutique measures like the internal solutions outlined above to protect it. We will, I believe, have to incorporate it into our legal system, just as we have incorporated the conventional intangible property I mentioned earlier.